S. Oragbade Vs Chief S.J.M. Onitiju (1962)
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The plaintiff has appealed against the judgment given in the High Court at Ibadan, on the 28th September, 1959, which dismissed his claim and granted the defendant a declaration of title to the area in Exhibit L (plan OG/150/58) thereon edged red; and the defendant has complained against the refusal to grant him an injunction besides.
In the writ the plaintiff is described as “Sam Oragbade for himself and on behalf of other Farm-owners of Ifetedo-Ere Farmlands”, and the first paragraph of the Statement of Claim reads:-
The plaintiff is one of the oldest Farm-owners and Member of Ifetedo Community and takes this action in a representative capacity.”
The defendant (Chief S. J. M. Onitiju, the Obaloran of Ife) put in a defence ending with these paragraphs:
23. The defendant counter-claims against the plaintiff for a declaration of title to the piece or parcel of land delineated on plan CG/ 150/58 and thereon edged pink (annual rental £10).
24. The defendant and his family also claims an injunction restraining the plaintiff and his servants and/or agents from interfering with the defendant’s title to the land shown on plan OG/150/58 and thereon edged pink.
25. Wherefore the defendant and his family are entitled to succeed on the counterclaim.”
The plaintiff did not put in a reply.
In the course of the trial, towards the end of the Evidence-in-Chief of plaintiff’s witness No. 8, his learned Counsel asked for leave to amend the writ and the statement of claim, the writ to read:
Sam Oragbade for himself and on behalf of the Ifetedo Community;”
and paragraph 1 of the statement of claim to read:-
The plaintiff is a member of the Ifetedo community and sues for himself and as representing the members of Ifetedo community.”
The record below that reads as follows:-
Olagbaju says he objects but now withdraws his objection on terms and suggests 20 guineas.
Court: Leave granted to amend the Statement of Claim on terms at 10 guineas costs to the defendant.
Olowofoyeku withdraws the motion for leave to sue in a representative capacity.
Court: Motion is struck out.
And the hearing of evidence proceeded. I think that the title in the writ was also regarded by the parties and the court as amended, and is to be looked upon as amended.
A word of explanation is needed here. It used to be the practice, under the previous rules of court, for the plaintiff to obtain an order authorising him to sue in a representative capacity; but after the present suit was begun the rules were changed in the Western Region. The new rule, namely Rule 9 in Order 7 of the (W.R.) High Court (Civil Procedure) Rules which is the same as Rule 9 in Order 16 of the English Supreme Court Rules) provides that: –
Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested.
The need for the plaintiff to obtain an order disappears. It is, however, conceded by Chief Rotimi Williams, the learned Counsel for the defendant, that where A sues B as representing a class of persons with a common interest, an order is needed authorising B to defend the suit as their representative. Thus, if there had been an action between Chief Onitiju, as plaintiff, and Sam Oragbade for himself and on behalf of the Ifetedo Community, as defendant, Chief Onitiju would have had to ask the Court or a Judge to make an order authorising Oragbade to defend the community. But Chief Rotimi Williams argues that where a defendant counter-claims against a plaintiff who is suing for himself and others, as in this case, in view of Rule 3 in Order 20 of the High Court Rules, there was no need for such an order. That rule provides as follows:
A defendant in an action may set off, or set up by way of counter-claim, against the claims of the plaintiff, any right or claim whether such set-off or counter-claim sound in damages or not, and such set-off or counterclaim shall have the same effect as a statement of claim in a cross-action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim. But the Court may, if in the opinion of the Court such set-off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.
The argument is that the rule does not distinguish between a plaintiff who sues for himself alone and a plaintiff who sues for himself and others, and that the defendant may counter-claim against any plaintiff, whether he sues for himself alone or sues on behalf of others besides. At the same time learned Counsel has not been able to find any English or other case in support of his argument; and the point has to be settled now.
Suppose that A, for himself and others, sues B claiming a piece of land, and suppose that B later sues A for himself and others, and claims the same piece of land; the action and the cross-action would be consolidated and heard as one; but it is conceded that in his cross-action B would have had to obtain an order authorising A to defend in a representative capacity. It is reasonable to read Rule 9 in Order 7 and Rule 3 in Order 20 together in a manner which gives effect to both, and to say that if, instead of bringing a cross-action, B raises his cross-claim in the form of a counter- claim in the action brought by A, there is need for an order authorising A to defend the counter-claim in a representative capacity. In the words of the rule:-
Such set-off or counter-claim shall have the same effect as statement of claim in a cross-action.
In substance a counter-claim is a cross-action. The plaintiff in the present case became the defendant in the counter-claim; but there was no order authorising him to defend the counter-claim on behalf of the Ifetedo community. That is the flaw in the case of Chief Onitiju and the declaration in his favour.
In point of fact there was no common interest between Sam Oragbade and the people of Ifetedo; and that is conceded by Mr. Olowofoyeku, the learned Counsel for the plaintiff. On the evidence adduced for the plaintiff it was plain that he and others claimed to have each an individual farm of his own within the area in dispute; which means that the Ifetedo community as a whole cannot claim the entire area as communal land. The dominant words in the rule on representative action are:-
Where there are numerous persons having the same interest in one cause or matter:
and it is a question of substance whether they do have the same interest in one cause or matter. If they do not, a plaintiff cannot sue on their behalf; likewise a defendant cannot be sued on their behalf, neither can he be authorised to defend the action on their behalf. Those propositions are derived from these cases in England: Markt and Co. v. Knight S. S. Co., Ltd., (1910) 2 K.B. 1021, particularly the judgment of Fletcher-Moulton, L.J.; London Association for Protection of Trade and another v. Greenlands, Ltd., (1916) 2 A.C. 15. From the latter case it is relevant here to cite this passage from the judgment of Lord Parker of Waddington at p.38:-
Sir Samuel Scott could not properly defend on behalf of himself and all other members of the association without an order of the Court authorising him so to do.
Likewise here Sam Oragbade could not, as defendant to the counterclaim, defend, on behalf of himself and all other members of the Ifetedo community, the counterclaim made by Chief Onitiju, without an order authorizing Oragbade so to defend, and without the order, the judgment against Oragbade is not binding on the Ifetedo community: see the judgment of Scott, L.J., in Barker v. Allanson, (1937) 1 K.B., 463, at 475. The result is that the judgment in favour of Chief Onitiju must be set aside.
It would not, I think, be proper to let the declaration stand as against Oragbade personally, for that would preclude him from claiming the farm which he claims to have within the land on the plan (edged red or pink, according as the colour of the edging strikes the eye). It was done in Adegbite v. Lawal, 12 W.A.C.A., 398, under the former rule on representative suits; but the above consideration did not arise there; and the case of London Association, etc. (already cited) shows the difficulties which can arise, and they should be avoided here. The setting aside of the declaration will not in my opinion prevent the defendant from making any appropriate claim hereafter.
Likewise I do not think it would be proper to non-suit the plaintiff. Admittedly an action on behalf of the Ifetedo community as a whole claiming the entire area as communal land is wrong; so, the door should not be left open for the repetition of such an action, and the dismissal of the present action should stand. But this will not in my view prevent any appropriate claim being made hereafter: see Ajigunna II v. Akoworo II, decided in W.A.C.A. on 18th May, 1953. Without meaning to be exhaustive, if, for example, Oragbade wishes to claim a portion of the land in the plan as his farm, he may do so hereafter; and there will be nothing to prevent him from tracing his right back to a point of time when the portion was allotted to his ancestor out of communal property, if such be the case.
In effect the aim should be to put the parties in status quo ante except in one regard, namely, that the
Other Citation: (1962) LCN/0955(SC)